SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the High Court has correctly interpreted section 56 of the N.-W.F.P. Tenancy Act, 1950 (hereinafter referred to as the Act) in a manner to bar a Revision by the Board of Revenue where the Commissioner had exercised his own revisional powers conferred by the same section.
2. The appellants happened to be the landlords of village Balakot, Tehsil and District Mansehra and the respondents their tenants. The appellants through their predecessor sued the respondents in the Revenue Court seeking their ejectment. On the ground of default in the payment of rent. The Assistant Collector Ist Grade by his judgment dated 7-7-1973 upheld their claim and ordered the ejectment of the tenants and passed a decree in respect of the arrears of land revenue. The appeal of the tenants failed before the Collector/Assistant Commissioner, on 21-12-1974. A Revision filed by the tenants before the Additional Commissioner also failed on 23-2-1978. They thereafter filed a Revision Petition against the Order of the Additional Commissioner before the Board of Revenue/Chief Land Commissioner which partly allowed it on 24-7-1978. The Board of Revenue upheld the finding that the tenants were in default but declined to order their ejectment observing as hereunder:-- "So far as the ejectment is concerned, though the default on the part of the tenants is there but it is a casual and excusable case and not a chronic one, as the tenants from the time of their forefathers have been paying the chakota dues regularly. In the present case, as the land was partly barani and only meant for grazing the cattle when the forefathers of the present tenants toiled on it for years and made it culturable. Now this land has more value and is producing crops and there are valnut trees standing on it. All this improvement has been made by the efforts of the tenants and their forefathers. Therefore, justice demands that they should. Not be thrown out for the mere non-payment of this nominal amount of chakota of Rs.3 or so per annum which the petitioners are ready to pay. Thus the decree of ejectment is not justified in the present case specially when in Kaghan Valley almost all the brother tenants of the petitioners with such a long duration of tenancy have become owners with the abolition of occupancy tenancy under sections 5 and 8 of the Tenancy Act.
The default is there, it has been proved as such and the tenant must pay. Therefore, the decree regarding chakota stands and should be executed. The revision is accepted to that extent. "
The appellants filed a Constitution Petition in the High Court. The main ground taken up in the Constitution Petition was as hereunder:-- "That in view of the variation of the language of S.56 of N: W.F.P. Tenancy Act from the language of :S.84 of Punjab Tenancy Act, it is clear that the powers of revision in N: VWY.P. Is exercisable in one of the two forums either in Board of Revenue or in the Commissioner. The power of the Commissioner is not only co-existing but is co-extensive too. It is unimaginable in law, that a man should be taxed twice in the same matter or in the same cause of action and the same forum with different consequences."
The High Court followed the decision given by it in Fazalur Rehman and 12 others v. Board of Revenue N.-W.F.P. And 16 others (PLD 1983 Pesh. 1) and held that in view of the different language used in section 56 of the Act as compared to the Punjab Tenancy Act, the powers of the Commissioner and the Board of Revenue were concurrent and co-extensive and, therefore, the exercise of jurisdiction by one exhausted the remedy and no second revision as such could be filed.
3. Khawaja Muhammad Yusuf Saraf, Advocate, the learned counsel for the appellants contended that though it would be correct to hold that the power of revision is concurrently possessed by the Board of Revenue and the Commissioner under section 56 of the Act, it would be incorrect to assume that the powers are co-extensive. Amplitude of two powers, the one with the Board of Revenue and the other with the Commissioner, is different. The Board of Revenue revises, if at all, the order not of the Revenue Courts subordinate to the Commissioner but of the Commissioner while the Commissioner revises the order of Revenue Courts subordinate to the Commissioner. On the interpretation that the High Court has placed, the exercise of jurisdiction by the Commissioner becomes immune from examination by the Board of Revenue which cuts across the supervisory role of the Board of Revenue and the hierarchy of Revenue Courts, established under the Revenue and the Tenancy Laws.
4. Mr. Muhammad Hussain Lughmani, Advocate, the learned counsel for the respondents has, on the other hand, pointed out to the difference in the language of the Punjab Tenancy Act and the Act, in order to establish the difference and has supported the view taken by the Peshawar High Court in its earlier judgment delivered in the case of Fazalur Rehman and others and followed in the impugned judgment.
5. Section 56 of the Act which requires interpretation and examination in this case is reproduced hereunder:-- "56.Power to call for, examine and review proceedings of Revenue Officers and Revenue Courts.- -(1) The Board of Revenue or the Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him.
(2) A Collector may call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control.
(3) if in any case in which a Collector has called for a record he is of the opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with the opinion on the case for the orders of the Commissioner.
(4) If, after examining a record called for by himself under subsection (1) or submitted to him under subsection (3), the Commissioner is of the opinion that it is inexpedient to interfere with the proceedings or the order or decree, he shall pass an order accordingly.
(5) If, after examining the record, the Board of Revenue or the Commissioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings of an order or decree of a Civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case.
(6) Except when the Board of Revenue or the Commissioner fixes under subsection (5), a day for hearing the case, no party has any right to be heard before the Board of Revenue or the Commissioner when exercising its or his powers under this section."
One feature to be particularly noticed about this provision is that it confers suo motu jurisdiction on the authorities specified therein of calling for the record, examining it and of passing appropriate orders. It directly confers no right on the party or individual to prefer a petition seeking the invocation of the power. Nevertheless, being a public power, it could in fact be invoked by a person interested or aggrieved. The second feature is that the power recognises the hierarchy of Revenue Courts administering the Tenancy Law. A reference will be made to-other provisions of the Act in order to show how such a hierarchical arrangement is entrenched and made functional by supervision by the higher over the subordinate. Section 47 of the Act provides as hereunder:-- "47. Classes of Revenue Officers.--(1) There shall be the following classes of Revenue Officers, namely--
(a) the Board of Revenue;
(aa) the Commissioner;
(b) the Collector;
(c) The Assistant Collector of the first grade; and
(d) The Collector of the second grade.
(2) The Deputy Commissioner of a district shall be the Collector thereof.
(3) The Board of Revenue may appoint any Assistant Commissioner, Extra Assistant Commissioner or tehsildar to be Assistant Collector of the first or of the second grade, as it thinks fit, and any Naib-Tehsildar to be an Assistant Collector of the second grade.
(4) Appointments made under subsection (3) shall be by notification, and may be of a person specially by name or by virtue of his office or of more persons than one by any description sufficient for their identification.
(5) Subject to the provisions of this Act the jurisdiction of the Board of Revenue extends to the whole of the North-West Frontier Province and Commissioners, Collectors and Assistant Collectors to the districts in which they are for the time being employed."
Section 50 of the Act provides as hereunder:-- "50. Superintendence and control of Revenue Officers and Revenue Courts.---(1) The General superintendence and control over all other Revenue Officers or Revenue Courts shall be vested in and all such Officers and Courts shall be subordinate to the Board of Revenue.
(2) Subject to the general superintendence and control of the Board of Revenue, a Commissioner shall control all other Revenue Officers and Revenue Courts in the division.
(3) Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue Officers and Revenue Courts in his district."
6. The Revenue Courts have been established under section 49 of the Act and the first two subsections of it are relevant and these are reproduced as hereunder:- "49. Revenue Courts and suits cognizable by them--(1) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in subsection (3) or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.
(2) There shall be the same classes of Revenue Courts as of Revenue officers under this Act, and in the absence of any order of the Provincial Government to the contrary, Revenue Officer of any class having jurisdiction within any local limits under this Act shall be a Revenue Court of the same class having jurisdiction within the same local limits."
Finally, we come to section 51 of the Act which is worded somewhat in a similar language as is section 56:-- "51. Power to distribute and withdraw and transfer cases.--(1) The Board of Revenue or the Commissioner or Collector may by a written order distribute in such manner as it or he thinks fit, any business cognizable by - any Revenue Officer or Revenue Court under his control.
(2) The Board of Revenue or the Commissioner or Collector may withdraw any case pending before any Revenue Officer or Revenue Court under his control, and either dispose of it himself, or by written order refer it for disposal to any other Revenue Officer or Revenue Court under his control.
(3) An order under subsection (1) or subsection (2) shall not empower any Revenue Officer or Revenue Court to exercise any powers or deal with any business which he or it would not be competent to exercise or deal with within the local limits of his or its own jurisdiction
7. Section 4 of the Punjab Board of Revenue Act, 1957 as well as the provisions of the Act reproduced above clearly establish that the power of the Board of Revenue of superintendence, control and of overseeing the functioning of all Revenue Officers and Revenue Courts in the matter of land revenue and tenancy is well entrenched. The interpretation placed by the High Court on the provisions of section 56 of the Act has the effect of obstructing this entrenched power inasmuch as the High Court has held the Commissioner's exercise of revisional powers to be immune from examination by the Board of Revenue. This has been done on the analogy of section 115 of the Code of Civil Procedure where an express legislative provision exists barring the re-examination of the same matter by the High Court which has been examined by the District Judge in Revision. In this law, in the Act, there is no provision barring such an examination. Besides, the revisional power of the High Court had inhibitions, none of which exists in the case of Board of Revenue. To notice only a few, the revisional power of the High Court could not reach a pending proceeding but is limited to a case decided. Further, it is limited to cases which had been decided and in which no appeal lay.
The Board of Revenue and the Commissioner have no such constraint in the exercise of this power.
The District Court by subsection (2) of section 115 of the Code of Civil Procedure was expressed to be exercising the powers of the High Court to the limited extent of deciding a Revision within its jurisdiction. The Commissioner is not stated to be exercising the powers of the Board of Revenue.
The power under section 56 of the Act is concurrently enjoyed by the Board of Revenue and the Commissioner but it is in respect of the authorities subordinate to each one; in the case of Commissioner the authorities subordinate to it are different for the purposes of revisional order while they are different for the Board of Revenue. The Board of Revenue would be examining in this case not the order of the Collector or the Assistant Collector but that of the Commissioner. The Respondents in their Memo of Petition had sought revision of the order passed by the Commissioner and not the orders passed by the Assistant Collector or the Collector. In such a situation, the Board of Revenue could certainly see whether the Commissioner had exercised jurisdiction properly or not. If the principle of interpretation adopted by the High Court for section 56 of the Act is adopted, it will lead to great disharmony in the other provisions of the Act, for example section 51 confers in identical language the powers to distribute, withdraw and transfer cases. In a case where the Commissioner has exercised this power, the Board of Revenue would be helpless to exercise its own powers.
8. Not only the language used in the Act does not permit the interpretation placed by the High Court, the analogy of section 115 of the Code of Civil Procedure and importing limitations there from is not justified in the case because of the nature, the amplitude and the scope of powers being different under the two laws.
9. A view contrary to the view taken in this case appears to have been taken in the case of Haji Samad Khan and others v. Khalid Khan and others (1985 SCMR 770). However, the finding in that decision clearly on this point is obiter because the decision required and proceeded on the interpretation of revisional power reserved in clause (7) of paragraph 25 of the Land Reforms Regulation and rule 7 of the N.-W.F.P. Land Reforms (Procedure for Ejectment Suits) Rules, 1975.
10. We, therefore, accept the appeal, set aside the judgment of the High Court and dismiss the Constitution Petition filed by the appellants in the High Court.